West Virginia Department of Environmental Protection

ADVISORY COUNCIL MEETING MINUTES Tuesday, June 24, 2008

601 57 th Street, SE, Charleston, WV

West Virginia Room – 3 rd Floor

IN ATTENDANCE :

Members of the Council :

Jackie Hallinan

Karen Price Bill Raney

Rick Roberts

DEP:

Randy Huffman Cabinet Secretary Lisa McClung Deputy Cabine t Secretary and Director, Division of Water and Waste Management Raymond Franks II General Counsel

Karen Watson Associate General Counsel Kathy Cosco Communications Director

Pam Nixon Environmental Advocate Ken Politan Mining & Reclamation Lewis Halstead Mining & Reclamation Charlie Sturey Mining & Reclamation Carroll Cather Water & Waste Management

Don Martin Land Restoration Brian Long Water & Waste Management Dan Arnold Water & Waste Management

Mike Zeto Environmental Enforcement Terrie Sangid Water & Waste Management Jim Mason Air Quality Mike Johnson Water & Waste Management Kathy Emery Water & Waste Management Scott Mandirola Water & Waste Management

Visitors:

Tom Boggs Chamber of Commerce

Don Garvin WV Environmental Council

Ruth Lemmon WV Auto/Truck Dealers Association

OLD BUSINESS :2 Secretary Huffman called the meeting to order at 1:35 p.m., and he announced that Members Lisa Dooley and Larry Harris would not be attending. On motion made by Mr. Raney and seconded by Ms. Hallinan, the Council approved the minutes from the March 18, 2008 meeting. Secretary

Huffman then ceded the floor to Mr. Franks.

NEW BUSINESS :

Mr. Franks noted that for the 2009 regular legi slative session, DEP was proposing changes to 20 rules, grouped by Division for presentation to th e Council. Depending on who had shepherded the rule through its initial drafting, either Mr. Franks or Ms. Watson would lead the discussion, with program administrators available to assist in answering the Council’s questions.

Ms. Watson presented 60 CSR 3, the “Brownfields” Ru le. Ms. Watson explained that the Rule was currently pending before the Secretary of State for authorization as an emergency rule, and that the proposed changes included adjustments to the “de mi nimis” table and enhanc ing DEP’s flexibility in obtaining risk assessments.

Ms. Price referred to a letter recently sent to DE P seeking clarification of the Rule’s provisions concerning land use covenants and long-term mainte nance agreements. Secretary Huffman stated that the letter would be retrieved and the issue noted for further consideration by the agency.

Mr. Raney inquired whether the Council could reco mmend changes to the rules as presented. Ms. Watson responded in the affirmative. Mr. Raney then asked whether written comments, such as those submitted by Mr. Harris prior to the meeting, would be appended to th e minutes. Mr. Franks responded in the negative, and Ms. Watson expounded that Mr. Harris’s comments would be summarized and addressed orally during the discussion of the particular rules involved.

Mr. Franks then presented 38 CSR 2, the Surface Mi ning Reclamation Rule. Mr. Franks explained that the proposed changes would expand the Secret ary’s oversight of “approved persons” authorized

to render technical certifications contained with in mining permit applications, and would clarify certain collateral activities as being within the scope of requests for incidental boundary revisions to existing permits. Mr. Franks also noted that the proposed Rule would set forth more relevant and exacting criteria for the Secretary to consider in evaluating applications for revisions.

Mr. Raney inquired generally about the provisions with respect to approved persons. Secretary Huffman replied that the increased oversight is n ecessary to improve the in itial quality of the permit applications, such that the delays occasioned by subsequent corrections would be reduced or eliminated. Mr. Raney asked whether approved pers ons could include anyone other than engineers, and Mr. Halstead responded that the definition ex tended to surveyors and geologists. Mr. Raney noted the need to establish a procedure for suspen sion or revocation to limit the agency’s unfettered discretion, to which Secretary Huffm an and Mr. Franks replied that the Rule provided for notice and hearing prior to curtailing the privileges of anyone on the approved-person list.3 Ms. Watson presented 47 CSR 30, establishing NPDES requirements for coal mining facilities. Ms. Watson explained that the proposed changes were relatively minor, designed to enhance consistency with the non-coal rule, to allow for digital signatures, and to permit correction of clerical errors.

The Council then considered the Air Quality rule s. Mr. Franks presented 45 CSR 1 and 45 CSR 26, relating to control and reduction of nitrogen oxi des from, respectively, non-electric and electric generating units, the latter by means of a budget tradi ng program. The rules are to be repealed in their entireties, and Mr. Mason explained that both are being subsumed within the Clean Air Interstate Rule program.

Mr. Franks then presented 45 CSR 8, the Ambient Ai r Quality Rule. Mr. Franks explained that the 1-hour primary and secondary ozone standards were being replaced with 8-hour standards, with the maximum tolerance being reduced slightly. Mr. Ra ney inquired as to the practical effect of the proposed change, particularly with regard to wh ether non-compliance areas within the State might be expanded. Mr. Mason replied that an expansion mi ght occur, but that it wa s difficult to predict at this early stage. Mr. Mason added that the time-period increase would inevitably lead to more

accurate measurements.

Ms. Watson presented 45 CSR 13, governing permits for constructing and modifying non-major stationary sources of air pollutants. Ms. Wats on explained that the Rule was being amended to reflect the recent statutory changes reducing the la g time for issuing permits and authorizing certain pre-permit construction. It was noted that Mr. Harris had submitted in writing his concern that courts would be loath to enforce agency cease-a nd-desist orders based on defects discovered during the permitting process after constr uction had already begun. Ms. Watson pointed out that the statute had been carefully crafted to avoid facile invo cation of detrimental reliance, with Mr. Franks observing that the Rule strove to conform to the statute. Ms. Price wondered whether one or more of the timeframe provisions included within the existi ng Rule had been inadve rtently omitted from the proposed version. Ms. Watson responded that the Rule had been carefully checked for completeness, but that she would once again verify the language to assure its accuracy.

Mr. Franks presented 45 CSR 14, governing permits for constructing and significantly modifying major stationary sources of air pollutants. Mr. Franks explained that references to pollution control projects and clean units were deleted in accordance with a federal appellate court decision vacating those provisions.

Mr. Franks went on to present 45 CSR 16, 45 CSR 25, and 45 CSR 34, relating respectively to performance standards for new stationary s ources, pollution from hazardous waste treatment, storage, and disposal facilities, and emission st andards for hazardous air pollutants. Mr. Mason noted that the changes incorporate revisions to the Rules’ federal counterparts, except that some of the new standards were not incorporated w ithin 45 CSR 34, because they constituted unfunded mandates. Mr. Garvin was recognized, and he asked whether the failure to incorporate equated to a lack of regulation. Mr. Mason responded in th e negative, explaining that the monitoring and regulation would be performed by the federal governme nt. Mr. Garvin inquired as to the affected

industries, and Mr. Mason referred to a list incl uding smaller gas facilities and paint-stripping shops.4 Ms. Watson presented 45 CSR 37, detailing the budget trading program to reduce mercury emissions. Ms. Watson explained that the rule is being repealed as inconsistent with a federal appellate court decision, pending alternative action by the EPA. Mr. Garvin inquired whether the Rule repealed two years ago would be reinstated upon revocation of the current version, to which Ms. Watson and Mr. Franks replied that it would not, if there had indeed been a previous rule in place, which was somewhat in question. Mr. Mas on explained that mercury emissions would be monitored and regulated as usual, except that budge t trading would not be available as a method of

reduction. He also stated that there have been discussions on a national level as to whether to reinstate the federal mercury monitoring requirements.

The Council then turned its atte ntion to the Water and Waste Management Rules. Ms. Watson presented 33 CSR 20, governing hazar dous waste management systems. Ms. Watson explained that the Rule incorporated by reference its federal count erpart, the most salient change to which is its attempt to reduce disposal by permitting facilities to stage hazardous waste for three days pending recycling. Mr. Raney asked whether three days was sufficient time, and Mr. Cather responded in the

affirmative.

Mr. Franks presented 33 CSR 24, the Hazardous Waste Management Fee Rule. Mr. Franks explained that increases to the fee assessments are necessary to sustain the underlying Fund by ensuring sufficient matching revenue for federal grants . Ms. Price indicated her belief that, as part of the legislative compromise extending the fee’ s duration, no increases w ould be forthcoming until completion and review of the Fund’s legislative audit. Secretary Huffman responded that the preliminary audit findings in no way indicate any misallocation within the Fund or contravene the agency’s determination that fee increases ar e necessary. Ms. Lemmon was recognized, and she commented that the proposed increase was unfair to automobile and truck dealers, as well as other small generators. Ms. Lemmon suggested that a study be done to identify the industries causing DEP to incur program costs, with fee assessments to be made proportionately.

Ms. Watson presented 33 CSR 22 and 47 CSR 56, govern ing the assessment of civil administrative penalties for, respectively, hazardous and solid wa ste violations and violations relating to groundwater. Ms. Watson explained th at the Rules were being modified for the first time since their initial promulgation, with the purpose of clarifying their application by listing additional factors to be considered in calculating penalties, providing ra tings examples, and expanding facility categories.

Ms. Watson then presented 47 CSR 31, addressi ng the State Water Pollution Control Revolving Fund. Ms. Watson explained that the proposed ch anges include the creation of a state review process for sewer projects in lieu of a wholesale a doption of the federal requirements. Mr. Roberts observed that many of the eligibility criteria woul d be deleted, but Ms. Emery assured the Council that inasmuch as the criteria were not being uni formly met, the deletion would have no practical

effect on the Fund’s administration. Ms. Watson advi sed Mr. Roberts that if he continued to have concerns upon further review, he should submit wr itten suggestions for changes during the formal comment period.

Mr. Franks presented 47 CSR 32, governing the certif ication of laboratories conducting analyses of waste and wastewater. Mr. Franks explained that the proposed changes are designed to modernize5 outdated procedures and protocols that have rema ined constant since 1995, and to increase program funding through increased certification fees and a new application fee. Mr. Raney asked whether the new fees would render the program self-sustaini ng, and Mr. Arnold replied that it would for the time-being. In response to further inquiry, Mr. Arnold stated that DEP conducts annual, on-site

audits of commercial and industrial labs, with m unicipal labs typically audited every two years, depending on the experience of the support personnel.

Ms. Watson presented 47 CSR 34, the Dam Safety Ru le. Ms. Watson explained that the Rule is being extensively augmented to govern disburseme nt and use of a new Re volving Fund to finance repair and rehabilitation of deficient dams. Secretary Huffman commented that it appeared imminent that the Legislature would approve a transfer of $350,000 from ex cess general revenue as seed money for the Fund.

Lastly, Ms. Watson presented 47 CSR 2, the Water Quality Standards Rule. Ms. Watson explained that the proposed revisions are designed to clarif y the definition of Category A use, while providing specific standards to be applied in the permitting pr ocess to determine in a more streamlined fashion

whether the use is unsuitable in cases of insuffi cient flow and hydrologic modification. Mr. Raney commented that the Category A determination proce ss has always been a significant problem for the coal industry. Ms. Price also agreed for her memb ers. Mr. Garvin noted that the environmental community had expressed some in itial concern regarding the proposed streamlining mechanisms, but that there was some general support for taking the ma tter out of the legislative arena. Mr. Huffman affirmed that the revisions are designed solely for the benefit of the regulated public and that the revisions must include the clarification that Category A applies statewide.

Ms. Watson reported that the rules will proceed to be filed with the Secretary of State, some perhaps as early as the week following the Council meeti ng, and that some will have an extended 45-day comment period.

Mr. Franks requested closing comments from C ouncil members and from th e public. Following the cessation of discussion, Mr. Franks reminded the Council that the next meeting is scheduled for 1:30 p.m. on September 9, 2008.

Secretary Huffman declared the meeting adjourned at 3:25 p.m.